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The H-1B Visa Blog by Siliato and Malyk

H-1B Petitioners Beware! New Affirmation Requirement Regarding Release of Controlled Technology or Technical Data to Foreign Nationals

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Just when we thought that USCIS could not make H-1B compliance any more difficult, a new twist has been added. Now, aside from (a) the complexities of LCA and public access file compliance, (b) the evidentiary hurdles in placing an H-1B worker at a third party site; and (c) dealing with the H-1B cap, H-1B petitioners now must familiarize themselves with what is and what is not a "deemed export" of certain technologies at the risk of subjecting themselves to potentially severe consequences including those attendant to a finding of perjury.


On November 23rd, USCIS published a revised version of Form I-129, Petition for Nonimmigrant Worker.  The new form requires petitioners to take additional steps to ensure that federal export compliance is properly evaluated and that petitioner's attestations are accurate.


With regard to export compliance, the new Form I-129 includes a new Part 6, entitled "Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States" which requires petitioners that seek to employ foreign nationals in H, L, and O nonimmigrant visa status to certify that the company (i) has reviewed the Export Administration Regulations ("EAR") and the International Traffic in Arms Regulations ("ITAR"), and (ii) made a determination as to whether or not an export control license is required to release any controlled technology or technical data to the foreign national.


More specifically, the revised form contains explicit language in Part 6 that requires the petitioner to affirm that, with respect to technology or technical data that the petitioner will release or otherwise provide access to the beneficiary:


(i) A license is not required from the Department of Commerce or the Department of State to release such technology or technical data to the foreign person; OR


(ii) A license is required from the Department of Commerce or the Department of State to release such technology or technological data to the beneficiary and the petitioner will prevent access to controlled technology or technical data by the beneficiary unless and until the petitioner has received the required license or other authorization to release it to the beneficiary.


Clearly, the affirmations in Part 6 require some due diligence which includes the review of the beneficiary's job duties to make sure such position does not require a license (which the employer will otherwise need to obtain) before the beneficiary may commence the position for which he/she is being hired.


If, in fact, an export license is required before making such a release, the employer must attest that the foreign worker will not be exposed to any covered "technologies" without first obtaining the requisite license to cover the foreign worker.  It is very important that petitioners not make a misrepresentation on Form I-129 in this regard, which in itself could be construed as a violation of federal law. 


Petitioners should consider reviewing the new Form I-129 and its instructions with export counsel to determine whether an export license is required before signing the attestations on Form I-129 under penalty of perjury.


While the new form is effective now, petitioners may continue using the former version of the form (which does not include the reference to export license requirements) until December 23, 2010.


Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP

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